1. The late Rajah of Pithapuram granted the village of Karappa oil an Izara Patta (Exhibit A) to one Madhava Rao, the predecessor in title of the defendant, in 1885. Madhava Rao executed the Muchilika (Exhibit A). The Rajah died in 1890 and the estate was under the Court of Wards till the institution of the suit. The present Rajah has since attained majority. The suit was brought by the Court of Wards in 1906 for the recovery of the amount due under Exhibit A from the death of the late Rajah. Exhibit A, so far as it is now material, is in the following terms : 'You should continue to enjoy Karappa village, with the exception of Devabramana Mirasi Inamulu and Salabadu Khatamanyamulu, paying Rs. 3,976-11-0, the amount fixed till the last 1294 fasli, on the remaining jerayathi, etc., yourself enjoying a remission of Rs. 1,026 just as your father Karapa Rao Venkata has been enjoying ; deducting this amount of Rs. 150 for Mamulu Mujamulu and Rs. 184 for Maniyapalasayani, total Rs. 1,360. Out of the balance of Rs. 2,616-11-11, Rs. 209 should be continued to be paid for Seri under you, according to the kists obtaining in the village, and Rs. 534 should be enjoyed till you continue in our good graces, till you wait upon me, and till you are of help in my business transacted. You should-continue to pay from fasli 1295 in your line of heirs by the son and grandson Rs. 1,873-11-11, being the half-yearly beriz of my village according to the undermentioned instalments and shall continue to obtain receipts. You should also continue to pay interest at one per cent, per annum on the amounts remaining unpaid after the expiry of the due dates. You should yourself collect from the ryots all the taxes, such as the local cess, etc., which the Government may levy on the lauds of this village and shall continue to pay it to the Divanam.' The questions in issue are whether the defendants were bound to pay to the plaintiff annually the sum of Rs. 209 and Rs. 534 referred to in Exhibit A and whether the plaintiff is entitled to recover from the defendant the money which the plaintiff paid to the Government for water which, according to him, the defendants were bound to have collected from the ryots and paid to him under the last clause in the above extract.
[After dealing with the other questions relating to the construction of Exhibit A in the case, i.e., the izara lease, their Lordships proceeded as follows : Ed.]
2. The next question is whether the plaintiff is entitled to recover from the defendants the water cess imposed by the Government on the lands in the village and paid by the plaintiff to the Government, which according to the contention of the plaintiff the defendants were under the terms of Ex. A to collect from the ryots and pay to the plaintiff.
3. Water cess is not expressly mentioned in Ex. A. It is undoubtedly more important than the local cess which is mentioned therein. Whenever water was used for second crop the zamindar used to take an application from the ryots, levy the second crop water cess himself, and pay it to Government instead of leaving it to the defendants to recover the cess from the ryots and pay it to him. The words in Ex. A are ambiguous and the conduct of the zamindar seems to show that he did not recognise any liability on the part of tile defendants to collect the cess. Exhibits G, H and J series only show that the izaradar was taking steps to protect himself in case he had to pay the cess to the zamindar. But when the defendants endeavoured to collect the cess by including it in the patta, the Deputy Collector ordered the pattas to be amended by expunging the clause relating to the water cess (Ex. XIX). The defendants' tenants were then acting under the advice of the Estate Manager. For these reasons, we are inclined to think that the defendants were not bound under Ex. A to collect the cess from the ryots.
4. Assuming, however, that the clause in Ex. A is wide enough to cover the water cess, the question remains whether there was any loss recoverable by the defendants from the ryots. The area of the total jerayathi lands in the village was about 900 acres. Of this, an extent of about 500 acres was inamool wet, i.e., for 500 acres of land not localised water had to be supplied by Government free of any cess. If the area cultivated as wet land in any area exceeded this extent allowed as mamool wet, water cess was leviable by the Government under Madras Act VII of 1865. If the zamindar or the ryot applied for water it was then supplied by the Government on conditions more favourable than when it was1 used without any prior sanction. From Fasli 1300 to the Fasli of 1313 it was found that in each year, land greater in extent than what was allowed for mamool wet was cultivated without the permission of the Government and the Government levied the water cess for such cultivation from the zamindar. It is this amount which the plaintiff seeks to recover from Government.
5. The claim is not based on any implied contract. The plaintiff does not seek to recover from the defendants any amount which the latter ought to have paid and which the plaintiff had to pay. The only question is whether under Ex. A the defendants were entitled to recover the amount from the ryots.
6. To establish their claim to recover water cess, from the Raja the Government had only to show that an extent larger than that agreed upon as mamool wet had been cultivated. But for the Zamindar to recover any water cess from any individual ryot, he has to show that the latter has cultivated any portion of his holding which was not mamool wet. In other Words, the 500 acres of mamool wet lands had to be localised to determine whether any ryot had cultivated any land and what extent of land which was not mamool wet. Further, it has now been settled by a series of decisions that if the zamindar wants to enhance the rent in consequence of any increase in the produce by water supplied from and Government source, he must previously obtain the sanction of the Collector under the Rent Recovery Act. No ryot is therefore bound to pay anything on this account to the defendants before the Collector gives his sanction. It was argued by the plaintiff's pleader that the defendants were bound to apply to the Collector for sanction to enhance the rent payable by the ryots. The Izara (Ex. A) does not impose any such obligation on them in express terms. Prima facie it is the person on whom the Government imposes the assessment, i.e., the zamindar, who is entitled to apply to the Collector for sanction for enhancement which became necessary on account of such imposition. Under Section 9 of Act VII of 1865, the engagement with the Government for exemption from water cess could be made by the zamindar or other landholder. It does not appear that a farmer could apply under that section. On this question we see no reason to differ from the judgment of this Court in S.A. No. 939 of 1894. We are, thererore, of opinion that the Subordinate Judge is right in holding that the plaintiff was bound to obtain the sanction of the Collector for any enhancement of rent before calling upon the defendants to collect such rent from the ryots. We confirm the decree of the Subordinate Judge on this point.
7. It is conceded that the fourteenth defendant is only liable for any cist that may have fallen due since his purchase, i.e., from 20th November I900. Appeal No. 177 is dismissed with costs. The decree will be modified so as to make him liable only for such cist for his one eighth share. In the other appeals parties will pay and receive proportionate costs as in these appeals. Fourteenth defendant will get separate set of costs.